New Delhi: The government’s aggressive stand during hearings in the Supreme Court on the constitutional validity of the National Judicial Appointments Commission (NJAC) will effectively ensure that even if the bench strikes down the law, the old collegium system will not be revived.

The NJAC law, passed in 2014 by both Houses of Parliament almost with dissent, and by 20 states assemblies subsequently, clearly represents the overwhelming will of the people of India. This does not mean the court can’t strike it down on grounds of unconstitutionality, but it will certainly make the collegium system of appointing judges impossible to defend or revive.

The collegium system came into being in the 1990s when the Supreme Court decided in two cases that judges will appoint themselves — unheard of in most parts of the world — and giving the executive almost no say in the business. This was not the mandate of the original Article 124 of the Constitution on the appointment of judges, which said that the President will appoint judges after consultations with the Chief Justice and any other judge he may want to.

That the judiciary does not like the NJAC has been apparent from the start. First, the petitioners forced Justice AR Dave to recuse himself from the bench as he would have been part of the NJAC by law. This was followed by the CJI, HL Dattu, also refusing to join the committee to pick eminent persons to join the NJAC.

The five-judge bench hearing the NJAC case also got the government to agree that the tenures of the additional judges whose probation would have ended during the pendency of the hearings would be extended without constituting the NJAC.

However, Attorney General Mukul Rohatgi has been more than blunt in his arguments before the bench in order to send the clear message that there was no way the collegium could be restored. At best, there can be a stalemate over the appointment of judges, which neither government nor the judiciary may want.

First, Rohatgi argued that the collegium system, which was brought in by a nine-judge bench, cannot be restored or the NJAC law overturned by a smaller, five-judge bench. He also got five BJP state governments to send in their lawyers to back his contention.

At the hearing yesterday (11 May), Rohatgi not only again sought an 11-judge bench to hear the case, but also said that the collegium system was dead. This court could not revive it, for Parliament will not be pushed around by what it would say when it had decided otherwise.

According to a report in The Indian Express, the bench asked Rohatgi what would happen if it quashed the amended Article 124 that enabled the constitution of the NJAC. His unambiguous reply: Article 124 is over. If the court strikes it down, Parliament would not revive the old article, which a nine-judge Supreme Court bench had interpreted to give itself an unintended mandate to choose judges.

The Express reports that the Rajasthan government’s lawyer, K Parasaran, made it clear that Article 124, in the form it had been interpreted by the top court to establish a collegium, would never be revived.

To drive home the message deeply, Rohatgi emphasized the court’s own interest in the case. He pointed out, unsubtly, that the court was effectively judging its “own cause”.

The five-judge bench may yet recuse itself and ask for a 11-judge bench to finally hear the case. But it was left in no doubt that the collegium system was never going to come back.

NJAC may be stillborn, but the collegium is over for good.